Potential roadblock looms for highway project funds

An aquifer-protection group has warned the RMA that if it doesn't do more to protect endangered species, it could face a federal lawsuit.

Published 10:30 pm, Thursday, April 29, 2010

An aquifer-protection group has threatened to sue the Alamo Regional Mobility Authority if it doesn't do more to protect endangered species as it pushes ahead with a planned interchange at U.S. 281 and Loop 1604 on the North Side.

And if Aquifer Guardians in Urban Areas goes to federal court, that could jeopardize the $80 million in stimulus funding that's made the project possible, officials with the authority say.

AGUA notified the authority of its intent to sue because a 60-day notice is required under federal law, but AGUA President Enrique Valdivia said he hopes his group won't have to file a lawsuit.

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"We're dedicated to advocating and making sure the best deal is struck for the aquifer," he said. "I think the appropriate resolution for this is to negotiate an agreement rather than go to court."

AGUA's attorney, Bill Bunch, said the mobility authority has shotgunned the process and swept aside far too many concerns so that it can make the project "shovel-ready" to get federal stimulus funds.

He said AGUA wants the authority to buy pristine land over the aquifer to mitigate the loss of habitat for the area's karst invertebrates, or "cave critters."

"We've lost too much of the karst habitat," he said. "But we have a larger concern about them building a project hastily without addressing a range of issues from the aquifer to noise and air pollution."

Terry Brechtel, the mobility authority's executive director, said her agency has done all the environmental work required by the Federal Highway Administration and is "baffled as to why someone would want to stop this." The highway administration told the authority to complete a "categorical exclusion," the lowest level of environmental review.

"We've gone through every step and checked every box, and made sure we had a completely new categorical exclusion that includes the biologicals they're bringing into this proposed lawsuit," she said. "They're claiming there's a feature that's 1,000 feet off the corridor right of way that should have been included" in the study.

Brechtel said the authority consulted with the U.S. Fish and Wildlife Service and was advised to study environmental impact 500 feet beyond the project. The study found the project "may affect but (is) not likely to adversely affect" the adjacent environment.

AGUA representatives say the categorical exclusion process isn't sufficient for a project of this magnitude.

"It's just absurd to say there aren't any adverse affects at all and, therefore, we don't have to think about them," Bunch said.

Besides mitigation, AGUA wants the mobility authority to address how it will handle runoff from the project - both during construction and after completion - that could pollute the area's drinking water, Bunch said.

Brechtel said she's hamstrung on mitigation.

"I'm not authorized to use money for environmental mitigation," she said, referring to the project's federal stimulus funding. "I don't know of any projects in the state where those dollars that have been used for mitigation. That's a question out of my hands."

The mobility authority also has no other source of money to cover the cost of mitigation, she said. Without the stimulus funds, the authority likely only could build the interchange as a toll project.

A lawsuit or injunction could kill the project, since stimulus funds have an expiration date. The authority must spend its last stimulus dollar by Sept. 30, 2015, spokesman Leroy Alloway said. But the authority can't wait until the deadline to spend it - the money is released on a monthly basis.

"The way the law reads, if you have any money you haven't spent by that point, you lose it," Alloway said.

The authority has about five months to finalize its contract with Williams Brothers, the low bidder on the project, to lock in the fixed bid. After that, the price could rise because of inflation in construction, materials and labor costs.

If work hasn't started by February, the builder can renegotiate its contract with the authority and potentially increase the cost, Alloway said.

Valdivia and Bunch say there's a need to decrease congestion because idling vehicles at that intersection contribute to air pollution, which can enter the aquifer when it rains.

But the idea that AGUA is just trying to kill the project - "that's not true," Valdivia said.

"I hope that the (mobility authority) will bargain with us in good faith," he said. "We can both agree (a lawsuit's) an outcome that no one wants."